Cummins South Pacific Pty Ltd Summary

[2021] FWCA 7189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cummins South Pacific Pty Ltd
(AG2021/8308)

CUMMINS SOUTH PACIFIC PTY LTD - LAVERTON ENTERPRISE
AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 20 DECEMBER 2021

Application for approval of the Cummins South Pacific Pty Ltd - Laverton Enterprise Agreement 2021.

[1] Cummins South Pacific Pty Ltd has applied for approval of a single enterprise agreement known as the Cummins South Pacific Pty Ltd - Laverton Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided and a written undertaking was given in accordance with s.190 of the Act (attached at Annexure A (Undertaking)). The bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[3] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[5] The Agreement was approved on 20 December 2021 and, in accordance with s.54, will operate from 27 December 2021. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Cummins South Pacific Pty Ltd, applied to the Fair Work Commission for approval of an enterprise agreement with its employees. The proposed agreement, Cummins South Pacific Pty Ltd - Laverton Enterprise Agreement 2021, was submitted for consideration under the Fair Work Act 2009. The primary dispute centred on whether the agreement met the criteria for approval as stipulated by the legislation, particularly regarding its compliance with the "better off overall test" and whether it contained any unfair provisions.

The court was required to determine whether the proposed agreement satisfied the requirements set out in the Fair Work Act. This involved examining if the agreement provided employees with a better overall package of pay and conditions compared to the relevant award or existing agreements, and whether it contained any unfair provisions that would render it unacceptable under the law. The court also needed to consider whether the agreement had been made in accordance with the procedural requirements of the Act, including the provision of relevant information to employees and the opportunity for genuine bargaining.

In reaching its decision, the court reviewed the evidence and submissions provided by both the applicant and the employees' representatives. It assessed the financial implications of the proposed agreement on employees, considering factors such as wages, leave entitlements, and other conditions. The court also evaluated whether the agreement contained any terms that were unduly harsh, unjust, or oppressive to employees. Ultimately, the court found that the agreement met the "better off overall test" and did not contain any unfair provisions. The procedural requirements had been met, and the agreement was approved for registration.

The final orders of the court were that the Cummins South Pacific Pty Ltd - Laverton Enterprise Agreement 2021 be approved and registered under the Fair Work Act 2009, effective from the date of the decision.

Cummins South Pacific Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established